Status of Int’l Human Rights Law in Domestic Surveillance: What the HRW/ACLU report reveals about officials’ views

This morning, Human Rights Watch and the ACLU released a joint report on the chilling effects of domestic surveillance. The report examines, in particular, the impact of surveillance on two groups: (1) journalists (e.g., on their ability to protect sources and acquire information including unclassified matters); and (2) lawyers (e.g., on their ability to maintain the confidentiality of client information).

The report analyzes these issues through the frameworks of constitutional law and international human rights law. The latter includes not only reference to the right to privacy but also freedoms of expression and association, freedom of the press, the public’s right to access information, and the right to counsel. [For recent coverage at Just Security on UN bodies’ suggestions that US surveillance runs afoul of international human rights law, see here and here. And also check out our annotated “Editors’ Picks: International Human Right Law on Privacy (and Surveillance)”]

One of the most interesting parts of the report is a short section in the middle (pp. 66-69) which relays statements by senior government officials on the status of international human rights law in their analysis of domestic surveillance programs. [H/T: Thanks to John Knefel who brought my attention to this excerpt of the report in an email exchange.] An excerpt of that section is below.

Among other things, note how this excerpt suggests, among other things, that there is no reference to the so-called Charming Betsy analysis. In other words, what about the Supreme Court’s admonition to construe any ambiguous statutory authority, if possible, as consistent with international law? Indeed, as I noted last month, the David Barron drone memo invokes the Charming Betsy canon of construction in the context of targeted killing. Surely if the Supreme Court’s holding applies to targeted killings, it applies to surveillance.

Here’s the excerpt from the Human Rights Watch/ACLU report:

The question of whether the programs fall within the letter of US statutory law has been discussed elsewhere. … However, our research strongly suggests that the US did not design the programs with protection of human rights foremost in mind.

When asked about the role of human rights law in shaping the surveillance activities of the US intelligence community, officials suggested it exists, but is limited. The senior FBI official acknowledged the significance of treaty-based human rights law, noting that “[t]reaties are the supreme law of the land,” and adding, “[i]f it’s the law, and it applies, we’ll enforce it.” Yet he also pointed to challenges “operationalizing concepts from international law,” and the comments of other officials suggested that a domestic legal analysis predominates.

“I don’t think that we have historically looked to international human rights law as having a substantial weight of its own, as opposed to … the kind of principles of freedom and dignity and individuality that it’s meant to incorporate,” noted the senior intelligence official. A former DOJ official said that most of the internal legal assessments would take the form of a “primarily … constitutional analysis”—not an analysis that explicitly takes into account the language of applicable human rights treaties.

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About the Author(s)

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016).
Follow him on Twitter (@rgoodlaw).